28 April 2014

What if this crane collapses, and hits workers on the construction site below it? Could you be liable to charges if you were operating the crane at the time? What about if you supervised its loading immediately prior to the collapse with a load that seemed especially heavy? How about if you own the company that erected the crane? What if you are a corporate director of the corporation that manufactured the crane?

Workplace incidents leading to serious injury or death of workers, pollution releases and contamination, mechanical failure of trucks, trains and boats, and financial or accounting irregularities can expose employees, supervisors, executives and corporate directors to both criminal and quasi-criminal personal liability. While sanctions can range from a small fine at the low end up to imprisonment at the high end, the key point is that you can be found personally liable for events which you might have had very little control over.

A proactive policy of due diligence within your entire business will best protect everyone against charges being laid, and best defend against any charges that are laid. That means properly documented safe working practices, clean environmental practices, mechanical maintenance practices, and generally accepted financial or accounting practices. It’s not enough to just do it - you need to carefully make records of when, where, how and by whom those practices were implemented. Be able to prove that you had reasonable plans, and that you followed those plans.

But in addition to looking out for the company and your colleagues, you also need to look out for yourself. If a government investigation is launched into your business practices, you don’t want to wind up being blamed for the acts or omissions of others. SEEK INDEPENDENT LEGAL ADVICE is the best suggestion that I can offer.

It’s not that your corporate legal counsel will give you bad advice, but his or her loyalties need to first lie with the business - not to you personally. You need to talk to your own lawyer. If you’re lucky, the company will even pay for it - there’s no conflict in the company paying, and it certainly doesn’t hurt to ask. It’s in everyone’s interests at a business that all persons who might personally become targets of an investigation receive timely, knowledgeable and independent legal advice. This kind of independent legal advice comes at a bargain price compared to what hiring legal counsel to go to court might later cost.

And if you do wind up getting charged, again seek out your own lawyer. The company could still certainly pay. In fact, I hope they would pay your legal fees if you were simply acting in the course of your employment or director’s duties. You lawyer might, in combination with legal counsel for the company, work out a deal with the prosecutor whereby the company pleads guilty in exchange for the prosecution undertaking to drop all the charges against the individuals like yourself. Be careful of joint legal representation, where it might be suggested that you plead guilty in exchange for charges being dropped against the company! Even if the company offers to reimburse you for any kind of fine to which you are subject, you will still be the one stuck with the conviction.

11 April 2014

Yes, you can indeed adopt a recuse pot belly pig from the SPCA, but such an adoption still involves contract law. This is Ophelia.

One of our core courses in first year law school was contract law, because making, breaking and enforcing agreements is at the heart of what makes our economy tick. Animals are as much implicated in contract law as they are in any core area of law, even when they are being “adopted” rather than being bought and sold. There are principally two types of contracts to know about where animals are concerned: (1) contracts for purchase, sale or lease of the animal itself that involve a full or limited transfer of property rights, and (2) contracts for services or goods concerning the care or use of the animal. It helps to understand some of the basics of contract law in order to understand your rights in making, breaking and enforcing animal contracts.

For the first type of contract involving full or partial ownership transfer, you need to understand that animals are fundamentally moveable property, subject to the same rules as other moveable property (sometimes called chattels) like furniture. A lot of us think of our pets as a lot more than property, and indeed animal cruelty and protection laws increasingly require that those looking after animals meet particular standards of care, but fundamentally every animal can be bought, sold or leased like other moveable property unless some law prevents such a transaction. There are lots of special rules governing contracts for the buying and selling of immoveable property (real estate) in order to make sure that everyone understands who owns what piece of land. But moveable property buying, selling and leasing terms are mostly left up to those concluding the contract — so watch our for what you are agreeing to when you are thinking about any kind of animal transaction.

Contract Principle #1 - MAKING THE CONTRACT: You need an offer, acceptance of the offer, and consideration in order to achieve a binding contract. The way this would work in animal terms could be:

BUYER: “I will buy your Norwegian Fjord horse team from you (the offer) for $4000 (the consideration from the buyer).”SELLER: “I will sell you my Norwegian Fjord horse team (the consideration from the seller), for your offered price of $4000 (the accepted offer).”

This may seem simple, but the contract making process can bring lots of grief to both buyer and seller if there is no real meeting of minds on what is being exchanged, an offer expires before acceptance, or what is thought to be acceptance is really a new counter offer (because a new condition has been added).

Contract Principle #2 - CAN IT BE A WRITTEN OR ORAL CONTRACT?: An oral contract is fully enforceable, but can be difficult to prove without witnesses, and may lead to misunderstandings. Notwithstanding that I’m a lawyer who earns my living by drawing up written contracts for people, I can tell you there’s nothing wrong with the “handshake deal” for most moveable property so long as you cover off the basic requirements for a contract. Probably writing down the basic provisions of the offer, acceptance and consideration, dating the document, and then having the parties sign the document, would be a better practice to avoid future misunderstandings.

Contract Principle #3 - ALL ANIMAL EXCHANGES ARE SUBJECT TO CONTRACT LAW: Even a rescue animal adoption is subject to contract law principles. If the rescue animal you welcome into your home just shows up on your front porch, with a pathetic mewing sound, contract law isn’t engaged so long as it is clear the animal doesn’t belong to anyone else. But if someone “gives” it to you, or you get it from a shelter, contract law is working its magic, even if you don’t see that magic. Someone giving you the animal likely has acquired some property rights in it, which they will be transferring to you.

The reason to be aware of contract law principles even when a "free" animal is involved is for situations involving questions like what if the people giving you the animal decide they want it back? What if they decide later that they want to be paid for it? What if they decide later that you aren’t a fit animal adopter, and they demand that you turn the animal over to an animal shelter? What are your rights in such cases? What if you are the person making the demands — can you do that to the person to whom you’ve given the animal? The answers lies in the terms of the contract for the transfer of animal ownership.

If the transfer was made with no conditions attached to it, you’re probably in the clear. However, if you only have an oral contract for transferring ownership, and the other party claims there were conditions, you might be put in the unenviable position of proving there weren’t conditions. Sure, if the matter went to court the burden of proof would rest on the party claiming there were conditions, but what would happen if that party produced two witnesses to claim there were conditions, and you had no witnesses? A simple (even handwritten) transfer on paper (even by e-mail) without conditions would be your best defence to future claims of breach of contract.

If there were conditions attached to the transfer, and you agreed to them (usually by signing a contract), you’re probably stuck with the conditions, unless you can demonstrate that they are “unconscionable.” That term doesn’t mean that you simply don’t like them. Or regret to agreeing to them. Or that most people wouldn’t have agreed. It comes down to something incredibly oppressive, and even then a court might uphold the terms if you voluntarily agreed, and it was clear enough what you were agreeing to. If, however, the wording of the contract is unclear, then that is a completely different situation where some legal advice might help discover what the reasonable interpretation of the contract should be.

Contract Principle #4 - BUYING A PIG IN A POKE MUST STILL LEAD TO A PIG: Commercial animal sales or leases are also subject to basic contract principles, including fitness for purpose. This means that if you are purchasing a dairy cow where all parties understand the purpose of the cow will be to produce milk, and that cow fails to produce milk, or you are purchasing what is claimed to be a fully trained horse suitable for riding, and in fact the horse is far too wild for anyone to ride, then your vendor has breached the contract by not providing the thing sold. It would be insufficient for a vendor to claim that the contact was only for a living cow, or a living horse, if in fact the contract (and the higher amount of consideration paid) was for an animal for a specific purpose.

Contract Principle #5 - ALL CONTRACT BREACHES ARE FROWNED UPON: Just because you believe the other party has breached its side of the contract doesn’t necessarily give you the right to breach your side of the deal. So if you’ve contracted to acquire an animal within the next week, and the animal is in fact delivered in two weeks, you can’t refuse to take the animal and honour your side of the deal, unless it was made very clear in the original contract that the contract would be terminated if the animal could not be delivered within a week. You might be entitled to some modest damages, but not to just walk away from the contract.

Contract Principle #6 - CAREFULLY CONSIDER REMEDIES FOR BREACH: The best contracts stipulate the remedies for breach right in the contract terms, like a return of the animal or a refund of the purchase price Some animal contract disputes will wind up in small claims court, depending on the amount of damages sought. But be aware that small claims courts usually can only award damages, and not force the transfer of an animal from one person to another person. Such a transfer will usually require the intervention of the superior court of justice, which can become a quite expensive proposition.

Family law issues can become intertwined with contract law remedies involving animals where a domestic contract (sometimes called a prenuptual agreement) stipulates what happens to family animals upon the break down of a relationship, but one or both parties aren't happy with the contractual outcome, and thus wind up seeking resolution from a superior court.

Contract Principle #7 — CONTRACTS FOR SERVICES OR GOODS INVOLVING ANIMALS SHOULD BE SPECIFIC: If you are contracting for something that is not unique, you may need more details in the contract specifying the precise details of the thing that is the subject of the contract. Thus while a contract for transfer of ownership of a particular animal may be sufficient by naming the animal (and its purpose, if any), a contract for “dog walking” will likely need to be quite particular as to how many dog walks are being purchased, when those walks will take place, the locations of the walks, and any other details that are important to one or both of the contracting parties in order to develop and maintain a mutually harmonious contractual relationship.

In the end, contract law is all about fostering harmonious human relationships, based on people keeping their word to each other, and giving them places to go in the form of the courts to obtain fair resolution to disputes, rather than having to take the law into their own hands. Read More About How an Animal Law Lawyer Could Help You